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Obama’s Hilarious Lawlessness

By RICH LOWRY

July 16, 2014

All of this is indefensible. Nicholas Bagley, a University of Michigan law professor and Obamacare supporter, wrote in a piece for The New England Journal of Medicine in May that the various ACA delays “appear to exceed the scope of the executive’s traditional enforcement discretion.” Even the forceful liberal pundit Brian Beutler of The New Republic concedes that, if the Boehner suit were to clear (formidable) procedural hurdles, the unilateral delays “would be hard for the Obama administration to defend.”

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The left’s reaction to the Boehner suit has been to rip the speaker for, in effect, suing to achieve the complete and expeditious implementation of a law he opposes. It is also pointed out that, even if the suit goes forward and rockets through the courts, there is unlikely to be a resolution before the employer mandate goes into effect anyway. All of this is true, but it suggests that Boehner is trying to vindicate a principle, not achieve a policy outcome.

The principle is rather obvious. As Bagley writes, “the Obama administration’s claim of enforcement discretion, if accepted, would limit Congress’s ability to specify when and under what circumstances its laws should take effect. That circumscription of legislative authority would mark a major shift of constitutional power away from Congress, which makes the laws, and toward the President, who is supposed to enforce them.”

If the next president accepts Obama’s modus operandi, we will witness the effective institutionalization of a chief executive unmoored from the laws. So I sympathize with the impetus behind the Boehner suit, even if I am lukewarm on the suit itself.

The key procedural question is whether Congress has standing to sue the president. The courts have strict rules on standing — there must be a specific injury traceable to unlawful conduct, etc. — that are “founded in concern about the proper — and properly limited — role of the courts in a democratic society,” in the words of the Supreme Court.

Even if Congress can establish standing, it is inviting the courts directly into a political dispute with the executive branch, when the Constitution equips it with its own tools to fight such battles, especially the power of the purse and impeachment. That prudential considerations make wielding those powers problematic in this political environment doesn’t mean that the courts should necessarily be the recourse.

At the end of the day, there’s simply no substitute for a political culture that values lawfulness. The president has damaged it gravely, and evidently had a hell of a lot of fun doing it.